If the Supreme Court is looking for a middle ground in Wiley v. Kirtsaeng, it's going to be hard to find. That copyright case, argued this morning, could have a big impact on resale markets around the country.
It's impossible to know from reading into oral arguments which way the court will go. Questions from the bench today show the justices are seriously concerned about the possible effects on resellers of common goods, as well as legal obstacles that could be created for museums and libraries. At one point, Justice Stephen Breyer grilled Wiley's lawyer about how a victory for his side would avoid interfering with the sale of millions of used Toyotas.
At the same time, at least some justices are concerned with copyright owners' right to engage in "market segmentation," and charge different prices in different countries. As for the grad student turned book-importer who challenged that system, Supap Kirtsaeng, there wasn't much sympathy to be found. Justice Elena Kagan casually referred to him as a "rogue" at one point.